Plaintiff (Counterclaim Defendant)
Plaintiff (Counterclaim Defendant) 1 and one other (Attorney Kim Young-young et al., Counsel for the plaintiff-appellant)
Defendant (Counterclaim Plaintiff)
Defendant-Counterclaim (Law Firm Mancheon, Attorneys Cho Jae-soo et al., Counsel for the defendant-Counterclaim)
Conclusion of Pleadings
July 18, 2014
Text
1. The Defendant-Counterclaim Plaintiff (Counterclaim Defendant) shall implement the procedure for cancellation of ownership transfer registration, which was completed on June 12, 2013 under the receipt of No. 8732, with respect to a motor vehicle listed in the separate sheet to the Plaintiff (Counterclaim Defendant).
2. The Plaintiff (Counterclaim Defendant) shall pay to the Defendant (Counterclaim Plaintiff) 15.6 million won with 5% interest per annum from July 18, 2014 to August 8, 2014; and 20% interest per annum from August 9, 2014 to the date of full payment.
3. The Defendant (Counterclaim Plaintiff)’s primary counterclaim and the remainder of the preliminary counterclaim are dismissed, respectively.
4. The costs of the lawsuit shall be borne by the Plaintiff (Counterclaim Defendant) in total, by 60%, and 40% by the Defendant, respectively.
5. Paragraph 2 can be provisionally executed.
Purport of claim
1. Main claim: It is consistent with paragraph (1) of this Article;
2. Counterclaim: The Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) shall deliver to the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) the vehicles listed in the separate sheet to the Defendant, and (2) shall pay 5% per annum from June 12, 2013 to the delivery date of the application for claim and change of cause of the counterclaim and 20% per annum from the next day to the date of complete payment.
Reasons
1. Facts of recognition;
A. Telephone conversations between the plaintiffs and the defendant's names in favor of each party
1) On April 2013, the Plaintiffs registered the purchase price as KRW 31 million in order to sell a motor vehicle listed in the separate sheet (hereinafter “instant motor vehicle”) in which the Plaintiffs owned 1/2 shares of each of the respective 1/2 shares on the Internet (hereinafter “○○”).
2) On June 11, 2013, Plaintiff 1 (hereinafter “Plaintiff 1”) who was directly involved in the instant transaction by Plaintiff 2’s agent (hereinafter “Plaintiff 1” only because Plaintiff 1 dealt with all activities on behalf of Plaintiff 2 in the instant transaction, referring to Plaintiff 1”) was called from Nonparty 1 (hereinafter “Plaintiff 1”) who was named as Nonparty 1 and attempted to buy the instant vehicle under the name of the company, “I want to buy the instant vehicle in the name of Nonparty 1, who is a person who works in the corporation as the head of the office in the name of the corporation. I would like to confirm the vehicle in the name of the company. I would like to purchase the vehicle in the name of Plaintiff 2’s agent in the instant transaction. However, as the company had become aware of the payment of the purchase price, I would pay KRW 31 million by adding together the money in the next transaction with the money.”
3) On the other hand, on June 10, 2013, the name-free person called △△△△ Motor Vehicle Trading Co., Ltd., which the Defendant operated by △△△△, called “the head of the Kim, who was in the transaction before △△△△, did not intend to purchase the instant vehicle for KRW 26 million,” and the Defendant’s employee who was called for this reason, reported the instant vehicle to her employee, could purchase the vehicle if he was punished. On June 11, 2013, the Plaintiffs called her phone to inform the location where the instant vehicle is parked, and “on the other hand, the borrower would display the vehicle” to the effect that “on the other hand, the borrower will check the status of the vehicle, and if you report the vehicle, the sales price entered into a sales contract with the borrower and sent it to B as the money to be received from the borrower due to credit relationship.”
B. The process of concluding a sales contract for the instant automobile
1) On the same day, Nonparty 2, who is the Defendant’s employee on behalf of the Defendant, found the Plaintiff along with other employees of the Defendant and Nonparty 4 (the Defendant attempted to purchase the instant vehicle from the Defendant’s seller), and confirmed the instant vehicle and subsequently purchased the instant vehicle to the Plaintiff. Accordingly, the Plaintiffs and the Defendant concluded a sales contract for the instant vehicle (hereinafter “instant sales contract”). Nonparty 2, who was enrolled in the Plaintiff’s office in the Plaintiff’s 210th century, drafted a sales contract for the instant automobile.
2) However, at the time, both the Plaintiff and Nonparty 2 et al. trusted only the contents of each currency with a person in a name-free relationship, and did not divide any talk about the sales price of the instant motor vehicle. The sales contract of this case does not contain any statement about the sales
3) After that, Nonparty 2 heard that Nonparty 2 would transfer money from his nameless and non-party 3’s account by making a telephone call with the Plaintiff, and sent money from his nameless and non-party 2 to his nameless account, followed the account number and name name on paper, and then sent money to the Plaintiff. Nonparty 2 transferred KRW 26 million to the non-party 3’s account from his name on the face of the answer that Nonparty 2 sent from the Plaintiff.
4) In addition, Nonparty 2 received documents such as a registration certificate and a certificate of personal seal impression necessary for the registration of the transfer of vehicle from the Plaintiff, and requested the Plaintiff to send the key to the instant vehicle.
5) However, the Plaintiff did not issue a key to confirming that the Plaintiff’s talks from a name-free person were remitted to the Plaintiff as the total amount of the purchase-price to the Plaintiff. However, until about 30 minutes elapsed, the Plaintiff did not transfer money to the Plaintiff and did not contact with the name-free person.
C. After the registration of transfer of ownership on the instant motor vehicle to the Defendant
1) Accordingly, the Plaintiff and Nonparty 2 filed a petition with the police station for fraud regarding the instant vehicle sales. As a result, the account of Nonparty 3, who received KRW 26 million, was fully withdrawn from all the money transferred to the large account for the purpose of obtaining a loan. Meanwhile, Nonparty 2 filed a complaint with Nonparty 2, but it was confirmed that there was no particular relationship between Nonparty 2 and the non-party 2, on the other hand, considering that Nonparty 2 conspired with the non-party 2.
2) The Defendant completed the ownership transfer registration of the instant automobile under the name of the Defendant as the receipt No. 8732 on June 12, 2013, using the registration certificate, sales contract, and certificate of personal seal impression delivered by the Plaintiff. However, the instant automobile continues to possess the Plaintiffs until now.
[Reasons] Facts without dispute; Gap evidence 1 to 3; Eul evidence 1 and 2; Eul evidence 3-1 to 3; Eul evidence 4; Eul evidence 6-1 to 3; Eul 7 and 8; Eul evidence 4-1 and 2; Eul evidence 4-2; the witness non-party 2's testimony; the plaintiff 1's part of testimony; the inquiry results on the Kimpo vehicle registration office of this court; the purport of the whole pleadings;
2. Determination on the main claim
A. Requirements for the formation of a contract
In order for a contract to be concluded, the agreement between the parties is required to be reached, and such agreement is not required with respect to all matters that form the content of the contract in question, but there is a specific agreement between the parties or at least on the standards and methods that may specify the essential or important matters in the future (see Supreme Court Decision 2000Da51650, Mar. 23, 2001). Meanwhile, a sales contract is established by an agreement between the parties on the transfer of property rights by a contract between the parties to the agreement on the transfer of property rights and the payment of the price to the other party in consideration thereof by the other party (see Supreme Court Decision 94Da3432, Apr. 26, 1996, etc.). Thus, barring any special circumstance, the subject matter of sale and the purchase price are the essential or important matters of the sales contract.
(b) inconsistent with the intention on the purchase price;
1) However, according to the above facts, even until the moment the plaintiffs and the defendant came to know of the fraudulent act of a person who has failed to receive the purchase price from the defendant, the plaintiffs' intent as to the sale price was definitely KRW 31 million. On the other hand, since the defendant knew that the purchase price was KRW 26 million, it is difficult to view that there was a mutual agreement between the plaintiffs and the defendant as to the purchase price, which is an essential element of the sales contract, at the time of the sales contract in this case.
2) The Defendant asserts that the instant sales contract was concluded as KRW 26 million since the Plaintiff knew that Nonparty 2 remitted the money of KRW 26 million to Nonparty 2, and that even if the Plaintiffs caused a mistake as to the purchase price, this is merely a mistake of motive, and it cannot be deemed as an important part of the contract, and thus, it cannot be revoked on this ground. However, even if the Plaintiff knew that the money transferred by Nonparty 2 at the time is merely KRW 26 million, the Plaintiff did not raise any objection as to the above fact of recognition. However, according to the above fact of recognition, the Plaintiff knew that the sum of the above money and the money of the money of the person who received no name was paid as the sale price. Thus, it is difficult to view that the Plaintiffs implicitly agreed on or approved the purchase price of this case as KRW 26 million,00,000,000, or that there was no other evidence to acknowledge it. Furthermore, it is difficult to deem that there was a mistake as to the purchase price as an important part of the motive for a juristic act.
In addition, the Defendant asserts that the instant sales contract was valid inasmuch as the Plaintiff was aware that the Plaintiff, at the time, was paid 5 million won by the person who was named in the name of KRW 26 million, and that the specific method of the sales price was scheduled. However, according to the facts acknowledged above, the agreement to determine the sales price and pay it is merely that it was made between the Plaintiffs and the person who was named in the name, and that the Defendant did not grant the right of representation to determine the amount of the sales price or the specific standard or method thereof to the person who was named in the name, etc. In addition, the Defendant was aware of the sales price of the instant sales contract at a fixed rate of KRW 26 million, not to specifically specify the sales price again between the Plaintiffs and the Defendant. Therefore, it is difficult to view that there was an agreement between the Plaintiffs and the Defendant on the future criteria and method for specifying the sales price in the instant case, and there is no other evidence to acknowledge this otherwise.
C. Sub-decision
Thus, since the sales contract between the plaintiffs and the defendant as to the automobile of this case did not come from the beginning, the defendant completed the transfer registration of ownership on the automobile of this case without any cause, the defendant is obligated to implement the procedure for the cancellation registration of transfer of ownership as stated in paragraph (1) of this Article.
3. Judgment on the counterclaim
A. Judgment on the main claim
1) The Defendant asserts that the instant sales contract is obligated to deliver the instant motor vehicle to the Defendant, on the grounds that: (a) the instant sales contract was established as KRW 26 million; or (b) the specific amount of the sales price was scheduled and valid; and (c) the Defendant paid all the sales price to be paid by the Defendant.
2) However, as seen in the judgment on the principal claim, the sales contract of this case cannot be deemed to have been effective, and there is no other evidence to acknowledge it, and the Defendant’s primary claim is without merit.
B. Determination on the conjunctive claim
1) At the time of the instant sales contract, the Defendant transferred KRW 26 million to Nonparty 3’s account with the Plaintiff’s consent or consent, and received documents necessary for the registration of transfer of ownership from the Plaintiff as seen earlier.
The plaintiffs asserted that, at the time, the defendant did not agree to send money to the non-party 3 account and did not merely know the fact that the seller agreed to do so. However, if the seller simply knew about the transfer of the purchase price to the non-party 3, the seller does not appear to arbitrarily transfer the purchase price from the purchaser's perspective. According to the above facts, the plaintiff was aware that the non-party 2 transferred money to the non-party 2 and the non-party 2 knew that he would transfer money to the plaintiff by combining the money of the non-party 2's name and the non-indicted 2's name to the non-party 3's account, even if the non-party 2 sent money to the plaintiff without any objection (the same applies to the case where the plaintiff was known that the non-party 3 was the name of the non-party 3, not the name of the plaintiff at the time when the plaintiff was known, but the non-party 2 transferred money to the non-party 2's account at the time of transferring the money to the non-party 2's witness bank.
2) Generally, in a sales contract, if the buyer consented or consented to the seller, it is difficult to see who actually receives the sales price as a matter of special interest. On the other hand, from the seller who is obligated to receive the sales price, the seller’s position is the most important issue of whether the buyer pays the sales price to anyone who actually receives the sales price. Nevertheless, according to the facts acknowledged earlier, the Plaintiffs consented to, without any confirmation as to the specific personal information of, and the relationship between, a person in a nameless and Nonparty 2 (or the Defendant) with, the person in a nameless manner merely believe that the person in a nameless manner was the telephone, and without any interest, the Plaintiffs agreed to transfer the sales price of the instant sales contract to a third party without any interest with the Plaintiffs. Furthermore, by delivering documents necessary for the registration of transfer of ownership, the Defendants were trusted to believe that the sales contract of this case was effective, and accordingly, the Defendant believed that the sales contract of this case was effective and transferred the sales price to Nonparty 3’s account until the commencement of its implementation. However, the Plaintiffs were unable to be held liable for damages arising from the conclusion of the contract.
3) Furthermore, the amount of damages that the plaintiffs are liable for is the damages that the defendant believed to believe that the sales contract of this case was effective, and thus, the amount of damages that the defendant trusted to establish the sales contract of this case and remitted to Nonparty 3 is the amount of 26 million won.
However, according to the facts acknowledged above, the defendant was negligent in not directly ascertaining the plaintiffs as to the real relationship between the name and the plaintiffs, the amount of the purchase price, etc., and in particular, the middle and high-class seller has a duty of care to pay higher attention to the defendant in the process of concluding the purchase and sale contract. Thus, the liability of the plaintiffs is limited to 60% of the amount of damages under the principle of fairness.
4) Ultimately, the Plaintiffs are obligated to pay damages for delay calculated on July 18, 2014, the following day after serving the Defendant’s claim for counter-performance and the application for change of the cause thereof (i.e., KRW 26 million x 60%) on the Defendant from July 18, 2014, which is the day after serving the Defendant’s claim for counter-performance and the application for change of the cause thereof (i.e., payment of damages from the day after the date of occurrence of damages, but the liability for damages due to the negligence in concluding the contract is a contractual liability or a contractual quasi-performance liability, and thus the obligor is liable for delay from the time of receipt of the claim for performance by the obligee, and the obligor shall be liable for delay from the time of receipt of the claim for performance by the obligee) by the rate of 5% per annum under the Civil Act and 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, from August 8, 2014 to the
4. Conclusion
The plaintiff's main claim of this case is justified. The defendant's main claim of this case is dismissed as it is without merit, and the main claim of this case is accepted within the scope of the above recognition, and the remaining main claim is dismissed as it is without merit.
[Attachment]
Judges Choi Jong-chul